ANN VILLA VS. BOARD OF REVIEW(BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3961-15T3

ANN VILLA,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR, and HUNTERDON ART
MUSEUM,

Respondents.
_____________________________

Submitted August 1, 2017 – Decided August 9, 2017

Before Judges Hoffman and Currier.

On appeal from the Board of Review, Department
of Labor, Docket No. 073-698.

Inglesino, Webster, Wyciskala & Taylor, LLC,
attorneys for appellant (Ellen O'Connell and
Joseph M. Franck, on the briefs).

Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Peter H. Jenkins, Deputy
Attorney General, on the brief).

Respondent Hunterdon Art Museum has not filed
a brief.

PER CURIAM
 Claimant Ann Villa appeals from the April 11, 2016 decision

of the Board of Review (Board) finding her ineligible for

unemployment benefits pursuant to N.J.S.A. 43:21-5(a). After a

review of the contentions advanced on appeal in light of the record

before us and the applicable principles of law, we reverse.

Claimant was employed as Director of Development by defendant

Hunterdon Art Museum. Contending that she had been fired by the

museum, claimant submitted a claim for unemployment benefits. The

Deputy Director of Unemployment Insurance (Deputy) determined that

claimant had left work voluntarily, and therefore, she was

disqualified for benefits.

Following claimant's appeal of the determination, a

telephonic hearing was conducted before the Appeal Tribunal.

Claimant testified that during a meeting with the Museum Director

(Director), claimant was advised that she was not well-liked by

the staff at the museum, and if she was not going to change her

personality she would have to leave. Claimant responded that she

could not change her personality, it was what had made her

successful in her profession. "[P]resuming" that she was being

fired, claimant stated that she stood up, shook the Director's

hand, thanked her, and left the office with the understanding that

she had been terminated. The Director did not respond to

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claimant's words or actions and did not call her back into the

office.

The Museum Director disputed that claimant had been fired.

She testified that at the meeting she discussed with claimant that

she had alienated the staff and she needed to work more

collaboratively with her coworkers. The Director contended that

she did not intend to fire claimant at the meeting; she was

advising her that she needed to change her attitude. The Director

acknowledged that claimant stated to her: "So what you're asking

of me is I gotta change or [you're] letting me go?" The Director

replied, "I think you've gotta think about parting ways if you

can't change." The Director conceded during the hearing that if

claimant had not changed her attitude she would have been fired

"at a certain point . . . [a]bsolutely."

The Appeal Tribunal reversed the decision of the Deputy,

finding that claimant had not left the job voluntarily without

good cause attributable to the work. The Tribunal stated:

[T]he employer presented the claimant with the
option to leave. The claimant chose to leave
because her attitude was part of her success
and the expectation that she change it was []
unreasonable. The option to leave was given
by the employer with the intention of
terminating the claimant's employment.

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 Following defendant's appeal, the Board of Review found that

claimant had chosen "to leave during a meeting with the executive

director when asked to work more collaboratively" and therefore,

had not left her employment for good cause attributable to the

work. The Board found claimant to be disqualified for benefits,

reversing the Tribunal's decision.

In this appeal, claimant argues that the Board erred in

finding her termination to have been voluntary, as her own

understanding that she had been fired was corroborated by the

Director's behavior at the end of the meeting.

We are mindful that our review of administrative agency

decisions is limited. We will not disturb an agency's action

unless it was clearly "arbitrary, capricious, or unreasonable."

Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

N.J.S.A. 43:21-5(a) provides in pertinent part that an

employee who "has left work voluntarily without good cause

attributable to such work" is ineligible for unemployment

compensation benefits. Under this section, the threshold question

is whether an applicant for unemployment compensation benefits

left her job "voluntarily." If the separation from employment was

voluntary, the applicant is eligible for unemployment compensation

benefits only if that separation was for "good cause attributable

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to [the] work." N.J.S.A. 43:21-5(a); Utley v. Bd. of Review, 194

N.J. 534, 544 (2008).

Claimant argues that her separation from employment was not

voluntary. We agree.

In Lord v. Board of Review, 425 N.J. Super. 187, 189 (App.

Div. 2012), we considered whether a "compelled resignation"

constituted a voluntary separation from employment requiring a

disqualification for benefits. In that case, Lord was required

to use his own vehicle to perform his job duties. Ibid. When his

car broke down and he was unable to afford the necessary repairs,

Lord was told by his supervisor that he had to resign from his

employment. Id. at 190. Although he did not want to leave the

job, Lord felt that he had no choice and he considered himself to

have been terminated. Ibid.

In our review of the Board's determination that Lord had left

his job for personal reasons not attributable to the work, and

therefore, he was disqualified from receiving benefits, we

concluded that the decision to resign was made only by the

employer. Id. at 191. We stated that there was nothing voluntary

about Lord's separation from employment; he did not desire to

leave the job. Ibid. If his car had been operational, he would

have remained employed.

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 Here, claimant was criticized in a meeting with her supervisor

and told that if she did not change her personality she would be

terminated. Defendant argues that claimant herself made the

decision to leave the job; the Museum had no intention of

terminating her at that time. Defendant contends that an on-the

job reprimand is not sufficient to categorize an employee's

departure as involuntary. This conversation, however, was more

than a reprimand. Claimant was told to "change her personality"

or suffer termination. Even if the Director did not intend to

discharge claimant that day, she made it clear at the hearing that

if a change was not made, termination was certain to occur at a

future time.

We find these circumstances to be similar to the "compelled

resignation" discussed in Lord. Claimant did not leave

voluntarily; she was advised that she would be terminated if she

did not change her personality. In her view, her personality was

what made her a successful development director. The decision

whether to go or stay was, therefore, not solely hers to make.

See Campbell Soup Co. v. Bd. of Review, 13 N.J. 431, 435 (1953).

As she stated: "[W]hen I was told to change my personality or

leave . . . I didn't have an option." Claimant determined she did

not have a choice other than to leave her position; her resignation

was involuntary.

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Reversed.

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